How social media can expose FMLA fraud

We all have heard the story of the employee who called off sick, but was healthy as a horse. We have also heard about the employee who submitted Family and Medical Leave Act (FMLA) paperwork when he or she did not feel like working. While such conduct can be difficult to prove, social media has been used to expose dishonest employees and provide employers with information to support the “honest belief” standard.

The Sixth Circuit Court of Appeals recently issued a decision in Jaszczyszyn v. Advantage Health Physician Network,1 supporting the employer’s termination of an employee who was seen engaging in activities that were contrary to her FMLA leave.

FactsSara Jaszczyszyn was employed at Advantage Health Physician Network for 19 months as a customer service representative when she began experiencing back pain from an automobile accident that occurred 10 years prior. Jaszczyszyn initially requested leave from Aug. 31 to Sept. 7, 2009, alleging she was “completely incapacitated.” She did not have enough paid sick leave, so in accordance with Advantage’s attendance policy, she was required to take FMLA leave to protect her job. Advantage requested Jaszczyszyn submit all necessary FMLA forms and reminded her she was to remain in regular contact with her supervisor and inform her supervisor of any planned absences.

Jaszczyszyn returned to work on Sept. 8 and submitted intermittent leave paperwork on Sept. 9, which stated she was having about four flare-ups a month. The doctor advised that the flare-up could last anywhere from a few hours to a few days, and that Jaszczyszyn would need to sit, lie down or change positions when flare-ups occurred. He also stated that she was unable to perform her job functions during flare-ups. Advantage approved the intermittent leave, but Jaszczyszyn treated the leave as continuous, never returning to work after Sept. 9, 2009. She failed to remain in contact with her supervisor, sporadically notified Advantage of her absences and did not submit FMLA paperwork in a timely manner. Three weeks after being away from work, on Sept. 22, Jaszczyszyn submitted the Health Care Provider Certification, which stated her projected length of disability was from Sept. 10 through Oct. 5. Just eight days later, Jaszczyszyn submitted an additional Work Release Form that stated she was completely incapacitated for another three weeks, from Oct. 5-26.

On Oct. 3, 2009, Jaszczyszyn attended Pulaski Days, a local Polish heritage festival, with her friends. She spent over eight hours at the festival and posted nine pictures of herself on Facebook. A friend shared approximately 127 pictures from the day. At some point during that weekend, Jaszczyszyn left multiple voicemails for her supervisor indicating she was in pain and would not be attending work on Monday.

One of Jaszczyszyn’s coworkers was upset about her behavior when she saw the pictures, so she shared them with Jaszczyszyn’s supervisor. After reviewing the pictures, the supervisor forwarded the pictures and the complaint to Advantage’s attorney and an investigation ensued. Advantage contacted Jaszczyszyn on Oct. 7, 2009, and requested she report to work to discuss issues related to her leave. Advantage prepared a “Corrective Action Notice” (i.e., a notice of termination with a statement of the problem) as is its standard practice, to be used at the meeting, if necessary.

During the meeting Advantage discussed Jaszczyszyn’s communication issues, requests for additional leave, her job duties and her physical condition, which prevented her from fulfilling her job requirements. They also discussed that Advantage took fraud very seriously. Advantage then questioned Jaszczyszyn about the Facebook pictures, which they believed were inconsistent with the statements she made in support of her FMLA leave requests. Jaszczyszyn did not deny her conduct, disagree with the characterization of the pictures or offer any justification for her actions. She only stated she did not know her attendance at the festival was prohibited. Advantage presented Jaszczyszyn with the Corrective Action Notice and terminated her employment.

LawsuitJaszczyszyn filed suit against Advantage, claiming retaliation and interference related to her FMLA leave. Advantage moved for summary judgment arguing there was no evidence showing anyone at Advantage had a retaliatory motive and that Advantage had an “honest suspicion” Jaszczyszyn was abusing her FMLA leave. The district court granted summary judgment to Advantage. Jaszczyszyn timely appealed to the Sixth Circuit Court of Appeals.

For an interference claim a plaintiff must establish that (1) [s]he was an eligible employee, (2) defendant was a covered employer, (3) [s]he was entitled to leave under the FMLA, (4) [s]he gave defendant notice of [her] intent to take leave, and (5) the defendant denied [her] FMLA benefits or interfered with FMLA rights to which [s]he was entitled. For a retaliation claim, a plaintiff must establish that (1) she engaged in an FMLA protected activity; (2) the employer knew she was exercising her FMLA rights; (3) after learning she exercised her FMLA rights, the employer took adverse employment action against her; and (4) there was a causal connection between the protected FMLA activity and adverse employment action.

McDonnell Douglas and honest belief?The court noted that the requisite proofs for retaliation and interference differ, particularly as to the employer’s intent. Although there was little doubt the court would apply the McDonnell Douglas burdenshifting framework to FMLA retaliation and interference claims, it questioned whether the “honest belief ” rule articulated in Smith v. ChryslerCorp.2, applies in FMLA interference claims. The “honest belief ” rule provides that, “so long as the employer honestly believed in the proffered reason given for its employment action, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial or baseless.”3

While the facts of this case provided the Sixth Circuit with the opportunity to decide whether the “honest belief ” defense applies in FMLA interference claims, the court avoided the issue, ultimately relying on its decision in Seeger v. Cincinnati Bell Tel. Co.4, that where a plaintiff has “received all of the FMLA leave to which he is entitled” his interference claim must fail. Advantage had approved Jaszczyszyn’s first request for leave, and had not yet ruled on her second request when the investigation into her Oct. 3 festival visit began. In addition, Jaszczyszyn limited her interference claim to Advantage’s failure to reinstate her at the end of her FMLA-approved leave, never arguing her termination interfered with her requested extension of leave; therefore, the court did not have to rule on the issue. The court affirmed the district court’s grant of summary judgment on the interference claim.

Next, the court examined Jaszczyszyn’s retaliation claim, applying the framework outlined in McDonnell Douglas v. Green5. The court focused on the key issue in retaliation claims—whether there is a causal connection between the protected activity and the adverse employment action. Jaszczyszyn could not demonstrate a “causal connection” between the protected FMLA activity and the termination. The court also decided the issue based on the “honest belief ” rule, finding Advantage’s proffered reason for terminating Jaszczyszyn’s employment was not pretextual, as Advantage had investigated the complaint and interviewed her before terminating her employment. In addition, Jaszczyszyn did not refute Advantage’s honest belief that she had committed FMLA fraud.

What should an employer do when fraud is suspected?

Conduct an investigation. Gather evidence from witnesses or independently, interview witnesses and listen to “talk.” Quite often co-workers know when an individual is defrauding the system. Don’t forget the use of social media, which may reveal a lot.

Be prepared. Thoroughly review all records, including the medical certifications, the employee’s records, and compare with any evidence to the contrary. Interview the employee, provide evidence and seek clarification.

Follow normal procedure. Follow the same procedure used in any other disciplinary situation. Keep in mind the “honest belief ” defense to a plaintiff ’s retaliation claim.

By Lisa Whittaker is an associate at Porter Wright, where she practices in all areas of management-side labor and employment law, helping employers manage the legal issues affecting their workforce. She defends employers in employment litigation and advises on the full range of employment issues, including the Americans with Disabilities Act, the Family Medical Leave Act, the Age Discrimination in Employment Act, and COBRA. Lisa was recently named one of Columbus Business First’s Forty Under 40 (2013).